Briggs v. City of Boston

Rugg, C. J. This is a petition brought by the lessees of an entire building on Washington Street in- Boston, to recover damages for the injury to a part of their leasehold estate by the Boston transit commission. In the building was a basement, which was used by the petitioners for storage purposes. By virtue of statutory authority, the transit commission took on May 17, 1906, the portion of this building lying between horizontal planes of division, the upper plane being approximately two inches above [151] the basement floor as it then was. On June 15, 1906, the petitioners weré notified by the transit commission to vacate the basement and to remove their goods therefrom, and they immediately complied with the notice. The respondent admits that' the transit commission, for the purposes of the public work imposed on it of building a tunnel in Boston, occupied the whole of the. basement for a substantial period of time. The basement floor was removed and replaced in the course of building the tunnel beneath the leased premises. Thereafter the petitioners resumed occupancy of the basement. In May, 1907, the present petitioners assigned to the owners of the estate, for a substantial consideration, their claims for damages arising by reason of the taking or by reason of any work done under or in connection therewith. The owners brought a petition to recover their damages and a settlement has been made of that claim. The present petitioners now seek to recover damages for the loss of occupancy of their basement and the cost of the removal of their goods, contending that that is an injury to them outside of the taking. The main question is whether this petition was seasonably brought. Ample power is conferred by St. 1902, c. 534, § 6, upon the transit commission to make whatever takings, qualified or in fee, are necessary to carry,out the undertaking entrusted to them. It is provided by § 8 that petitions for the assessment of “damages sustained by any person by reason of property taken or injured by the commission under authority of this act” must be filed “within one year after such property is so taken or injured.” The allegations of this petition in efféct are that the occupancy of the horizontal plane lying between the ceiling of the basement and the plane bounding the upper limit of the taking, which was two inches above the floor of the basement, was under the authority of the statute. It is manifest that the only right conferred upon the commission by the taking began when the instrument of taking was filed. The rights of the petitioners to damages, so far as they grow out of the taking either directly or incidentally, accrued on that date and are barred, because this petition was not filed until after the expiration of one year from the taking. If the use of the portion of the space within the basement which lay outside the plane of taking was a necessary inci [152] dent of the taking, then the right to damages is barred. If that use was not authorized by the act, then there is no remedy by petition under the act. The petition does not set out any facts showing that property has been “injured” as distinguished from having been “taken,” as these words are used in the act. Without discussing the nature of an injury to property, for which under the act a petition may be filed within one year thereafter, it is enough to say that the facts alleged in this petition fail to disclose that any property has been injured by the commission under the authority of the statute as distinguished from property injured by a. taking or injured by acts outside the authority of the statute. See Turner v. Gardner, 216 Mass. 65, 71. Exceptions overruled.